(Prayer: Appeal under Section 35 of the Central Excise Act against Final Order No.42744/2018 dated 31.10.2018 in Appeal No.E/40707/2018-SM on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.)
T.S. Sivagnanam, J.
1. We have heard Mr.A.Thiagarajan, learned Senior Counsel appearing on behalf of Mr.P.Premkumar, learned counsel on record for the appellant and Mr.K.Umesh Rao, learned Senior Standing Counsel appearing for the respondent.
2. This appeal by the assessee is directed against Final Order No. 42744/2018 dated 31.10.2018 in Appeal No.E/40707/2018-SM on the file of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for short, the Tribunal).
3. The appellant filed this appeal by raising the following substantial questions of law :
“i. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Department has discharged the burden of proof cast on it to levy penalty on the appellant solely based on the retracted statement is correct in law ?
ii. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in recording the findings against the appellant without giving an opportunity to cross examine the person, whose statement was relied upon against the appellant is correct in law ? And
iii. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not considering the movement of the goods, passing of consideration, which are contemporaneous records maintained and filed by the appellant by following mercantile system of accounting is correct in law?”
4. The Joint Commissioner of Central Excise, Chennai I Commissionerate issued a show cause notice dated 13.5.2016 calling upon the appellant – assessee to show cause as to why penalty should not be imposed on them under Rule 26(2) of the Central Excise Rules, 2002. In the said show cause notice, the Adjudicating Authority placed reliance on a statement given by the proprietor of the appellant – assessee on 14.9.2012, the photocopies of the invoices listed in the annexure to the said show causes notice, e-payment challans evidencing payment by M/s.Priya Engineering, the letter of the Department dated 28.9.2015 and the letter received from the Commissioner of Central Excise, Chennai IV Commissionerate dated 29.11.2015 confirming payment of subject amounts by the said M/s.Priya Engineering.
5. The appellant – assessee filed a reply dated 30.6.2016. The allegation against the appellant – assessee that they had availed the CENVAT credit without actually supplying the goods, was denied and the statement recorded from the proprietor of the appellant – assessee dated 14.9.2012 was stated to be under coercion and duress. The appellant – assessee placed reliance on the retracted statement dated 19.2.2015. Apart from that, the appellant – assessee produced certain invoices to show that there had been movement of goods and that the allegation made in the said show cause notice was not sustainable.
6. The Adjudicating Authority considered the submissions made by the appellant – assessee and by Order-in-Original dated 27.2.2017, rejected the explanation offered and confirmed the demand of penalty as made in the said show cause notice.
7. Aggrieved by that, the appellant – assessee preferred an appeal before the Commissioner of GST and Central Excise (Appeals-I). Even before the Appellate Authority, more or less, identical submissions were made as done before the Adjudicating Authority. The Appellate Authority, after considering the facts of the case and the grounds raised, rejected the plea raised by the appellant – assessee to refer to the retracted statement dated 19.2.2015 and after assigning other reasons, the Appellate Authority rejected the appeal by order dated 12.12.2017.
8. Challenging the said order dated 12.12.2017, the appellant – assessee filed further appeal, which was dismissed by the Tribunal by the impugned order.
9. The learned Senior Counsel appearing on behalf of the appellant submits that except for a reference to the original statement dated 14.9.2012, the Tribunal has not rendered any finding as to how the allegation made against the appellant has been made out and more particularly when the appellant was able to produce documents to show that the goods were, in fact, supplied. In that regard, the learned Senior Counsel has drawn the attention of this Court to paragraph 5.1 of the impugned order.
10. It has to be pointed out that the appellant – assessee, vide statement dated 14.9.2012, admitted the guilt. In fact, the CENVAT credit, which was availed, was reversed voluntarily. After about three years, the appellant – assessee retracted the statement on 19.2.2015. In the interregnum, the appellant – assessee did not raise any plea with regard to the allegation of coercion and duress while recording the statement dated 14.9.2012. Therefore, the Adjudicating Authority, the Appellate Authority and the Tribunal were right in rejecting the retracted statement dated 19.2.2015.
11. With regard to the invoices, which were submitted by the appellant – assessee, the Original Authority considered the same and found that the bank statements showed that the amount of money received by the appellant – assessee did not correlate with any of the invoice values raised by the appellant – assessee to M/s.Priya Engineering. In that regard, the Adjudicating Authority referred to a sample invoice in Invoice No.127 dated 30.9.2011. Thus, the Adjudicating Authority came to the conclusion that the appellant – assessee had not established that the amounts received by them in their bank accounts from M/s.Priya Engineering pertained to the invoices detailed in annexure I to the said show cause notice.
12. The Appellate Authority also considered the factual matrix, reappreciated the documents, which were placed by the appellant – assessee and confirmed the findings of the Adjudicating Authority.
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e Tribunal considered the contentions raised by the appellant – assessee and assigned reasons as to why the contentions advanced by the assessee do not merit consideration. Thus, we find the the Tribunal passed a speaking order and by way of this appeal filed by the assessee under Section 35G of the Central Excise Act, 1944, we cannot be called upon to reappreciate the evidence, which was considered and appreciated by the Adjudicating Authority, the First Appellate Authority and the Tribunal. Thus, in our considered view, no substantial question of law arises for consideration in this appeal. 14. Accordingly, the above civil miscellaneous appeal is dismissed. No costs.